Crossposted to Wikilegal-L There is another argument to look at here. The argument regarding fair use as being a way to create more of a public domain. Practically all the images that are used on Wikipedia (except perhaps for that one chart in the article that is way beyond fair use for other purposes but probably fits into fair use in an npo free encyclopedia) are low resolution and if they were reused they could only be used in informational contexts. Are any GFDL downstream uses ever going to be non-informational? Perhaps not. The point is that fair use requires use. And if enough people use an image for informational purposes (because there is no other images showing that, or the image is very generic or has little copyrightable content, i.e. is mostly representing information without any authorship) the question becomes not does that image not fall under fair use, but is the image use so widespread that more uses of it become fair and it becomes unreasonable to remove it from general circulation. This is similar to the argument that is used with images that have great historical value, they take on an iconic quality that is much more than the authorship of the image. Remember that information is not copyrightable, thus an image that only shows information (such as the protest image taken from a standard angle of a public event) may have a very weak claim to copyright to begin with if one can suggest that it is similar to other images taken at the same time and used widely in journalistic distributions. The argument about fair use being only a defense is a non-starter. Why? Because anyone can file a copyright infringment lawsuit and the case can get thrown out of court later. Being afraid of someone filing a potential lawsuit when there is a strong fair use defense is, as they say, just being a wimp. This is perhaps a subversive argument (yes lawyers use the law for all different purposes) that is encouraging fair use that becomes viral through a free content type license. It is used in an informational context and no one contests it. Google routinely has thumbnails and they are often of very commercial protected copyrighted material, but no everyone is forcing Google to take them down even though Google is a commercial enterprise. Such fair use can become something like public domain by estoppel. If people use and reuse these images all over the net how will a corporate owner stop it? Send a DCMA take down notice to every infringer? Considering drafting one of these notices can cost anywhere from $500 to $2,000 each the cost of doing so quickly becomes prohibitive. The result: they don't care. And they start thinking that maybe it is tolerated because the image gets out there and (as long as attribution is maintain which would be necessary under the GFDL anyway) then it brings people back to the original image and if there is a commercial tie-in the creator actually benefits. The GFDL becomes a means of free advertising that brings one back to the source of the content. Why would anyone not want that? "Hey, neat photo, let me go to the site where it comes from." "Hey, the NY Times sells prints of that photo that I can give someone as a gift and it is not that expensive." They would have not gotten back to that image source if it was not out there. Thumbnails are thus like free advertising that creates a new, previously non-existent marketplace through hyperlinking attribution (one of the reasons I always stress putting the source link back to the URL where the image came from so that anyone using or seeing the images can go back to the source immediately). Take us to court and tell the judge we are helping you exploit the image, not destroying its value, bingo, you have one at least one of the fair use factors and the owner will have a hard time in most cases getting past the other factors. It may even become a freedom of speech issue (which I get to below) like parody fair use that has become very broad. Perhaps this is another one of my long winded posts, but what I am trying to say as simply as I am able to say it is that fair use does not necessarily mean incompatibility with FDL, even for uncontemplated downstream uses. Is it always clear? No, but neither is copyright issues in any Wiki collaborative project. Why? Because as hard as an wiki contributors try then can never be certain that the content that someone else adds to a pagee is not a copyright infringment when someone posts it, and when it is thus made part of an ongoing collaboration of editing, reorganizing, and/or expansion the underlying infringement may still be there and may be very difficult to extract without destroying the whole collaboration. Does that stop it from being free? I don't think so because after it is edited there is always the argument that it has become part of the article. There are several arguments that can be used to support such an interpretation (granted I have not found any case law on wiki social software copyright issues and it is hard to imagine when or how such case law would develop in the future, but why not get ready for it before it happens). Well,besides the preceeding arguments there is an argument that a wiki site that is FDL is a collaborative work so each subsequent modifier of earlier work has (some) moral rights obligation (especially true when the work passes through a jurisdiction that has strong moral rights provisions in municipal copyright law) not to deface or destroy the other creators' contribution. (even in the so-called common law jurisdictions there may be an implied obligation to respect that ties to collaborative works that may be similar in scope to moral rights). Adapting the FDL license to a collaborative process puts a lot of pressure on the collective aspect of it and would prevent some kind of rampant misuse of fair use material that is used in a respectful way that does not prevent commercial exploitation of the original work (can anyone really make a t-shirt from a 200 pixel resolution thumbnail without transforming it in the process into a pixelated work of art?). I think of all the issues that Wikimedia might want to test in the courts it is the question of the limits of fair use on a wiki. Why? This will show how developed and open the transfer of information has become in a hyperlink society. These references actually give the author more respect, more potential to exploit there high quality originals and it encourages attribution rather than plagarism, something I think is a problem on Wikipedia that has yet to rear its ugly head when done with offline sources (not everything is posted on the internet). There are other reasons too (history pages with copyright infringments on it is one, but I know this post is way too long already so I won't get into that now). So I am saying that before we rush to say that all fair use is bad we should think about it carefully. It may be very important to has some tolerable standards for fair use as that may help innocent infringements fit into the GFDL as well as making content more free by creatively bending the limits of fair use into a realm where people can use even that new related information that is captured by digital cameras at the scene of the crime (or historical event, statue, public figure, etc. ,etc.) in a very non-creative manner, purely a digital rendering of an actual event, place, person or thing that might otherwise be protected by copyright, personality rights or privacy rights that can be used anywhere because of its limited resolution and value to general human knowledge. True there may be the obvious faux pas, such as the the 1200x900 graphic lifted from some site, but I think that most smaller pixel width contextually relevant images are not going to result in a rash of DCMA takedown notices hitting Wikimedia/Bomis. If the images are also reused by forks and other non-similar downstream licensor/licensees of the information hasn't the goal of free content been advanced if it becomes tolerated? Why not try to expand the public domain a little by taking a bit of a stand? Just a thought. Alex756